Filed 12/22/05 P. v. Johnson CA2/1

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION ONE

 

 

THE PEOPLE,   Plaintiff and Respondent,   v.   GARY DAVID JOHNSON,   Defendant and Appellant.

B182606   (Los Angeles County Super. Ct. No. BA235419)

 

 

APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Jr., Judge. Affirmed as modified and remanded with directions.

 

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

 

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.

 

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Gary Johnson was charged with 24 felony counts arising from seven separate incidents involving elderly female victims, and with various prior strike and other ancillary enhancement allegations. Two counts were dismissed at the close of the People's case, and Johnson was thereafter convicted of four counts of first degree burglary, four counts of first degree robbery, three counts of forcible oral copulation, two counts of false imprisonment of an elderly adult, four counts of elder abuse, two counts of sexual battery by restraint, one count of forcible rape, one count of assault with intent to commit a felony, and one count of attempted burglary. In addition, the jury returned true findings on allegations that all four robbery victims were over the age of 60, and that Johnson committed three of the burglaries with the intent to commit rape or oral copulation. Johnson admitted that he had suffered one prior strike, and was then sentenced to state prison for 35 and one-half years plus three consecutive life terms with a minimum parole custody period of 150 years.

 

Johnson appeals, challenging the sufficiency of the evidence with regard to the attempted burglary count and the propriety of his sentence with regard to the burglary and the false imprisonment counts. We agree that some of the concurrent terms should have been stayed but otherwise reject Johnson's claims of error and affirm the judgment as modified.

 

FACTS

 

Count 21 -- Attempted Burglary of Florence A. On July 26, 2002, Johnson approached 80-year-old Florence A. while she was watering plants outside her Hancock Park home. Johnson said he lived in the neighborhood but â€